J. Barksdale v. PBPP & SCI Mercer Records Dept. ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey Barksdale, :
Petitioner :
:
v. : No. 1426 C.D. 2019
: Submitted: June 12, 2020
Pennsylvania Board of Probation and :
Parole and SCI Mercer Records :
Department, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: September 9, 2020
Jeffrey Barksdale (Barksdale) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board),1 dated September 10, 2019,
confirming his parole violation maximum date as April 30, 2019. Previously, this
Court vacated the Board’s order calculating the same maximum date because the
Board did not sufficiently explain its calculation to permit a challenge. See
Barksdale v. Pa. Bd. of Prob. & Parole, 217 A.3d 469 (Pa. Cmwlth. 2019)
(Barksdale I). Following remand, the Board explained it calculated the maximum
date from Barksdale’s sentencing date on new charges, May 31, 2018. Barksdale
argues the Board should have calculated his maximum date using the date it issued
its detainer against him, November 16, 2017. Discerning no error below, we affirm.
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§6101, 6111(a).
I. Background
Subsequent to our opinion in Barksdale I, Barksdale was released on
parole on September 23, 2019. Because our published decision in Barksdale I sets
forth the facts in some detail, it is unnecessary to recount them here. Accordingly,
the background in Barksdale I is incorporated by reference, and only those facts
necessary to our disposition follow.2
In 2011, at the time of his parole, Barksdale had a maximum sentence
date of October 27, 2018. Certified Record (C.R.) at 3. The Board declared
Barksdale delinquent as a technical parole violator (TPV) on November 6, 2017.
C.R. at 11. Approximately a week later, Barksdale was involved in a high-speed car
chase with police, from which he fled. Police found drugs and drug paraphernalia
in the car Barksdale was driving.
The Board issued a warrant to recommit and detain Barksdale on
November 16, 2017, and he was arrested pursuant to that warrant on the same date.
C.R. at 12. He also waived his right to a revocation hearing on the date of his arrest.
Subsequently, Barksdale was criminally charged with several offenses
related to the November incident, C.R. at 35, for which the Court of Common Pleas
of Crawford County set monetary bail on December 7, 2017. C.R. at 75. However,
Barksdale did not post bail and remained incarcerated in a state correctional
institution (SCI) for the entirety of his pre-sentencing period. C.R. at 53.
2
From our review, the page references to the certified record in Barksdale I correspond to
the same pages in the certified record in this case.
2
In January 2018, the Board recommitted Barksdale as a TPV to serve
six months in SCI-Mercer pending disposition of his criminal charges. C.R. at 30.
In its January 19, 2018, recommitment order, the Board recomputed his maximum
date as November 6, 2018, using November 16, 2017, as the “custody for return
date” from which the unexpired term on his original sentence, known as backtime,
may be calculated. C.R. at 28. At that time, he owed 355 days of backtime.
On May 31, 2018, Barksdale was sentenced on the new charges to a
term of six to 24 months’ incarceration. See C.R. at 70-71 (Sentencing Order).
Specifically, the sentencing order credited Barksdale for his pre-sentence
confinement of 175 days (from December 7, 2017, to May 30, 2018), and stated that
the sentence on the new charges “shall run consecutive to all other sentences being
served.” C.R. at 70 (emphasis added).
Following sentencing, Barksdale waived his revocation hearing before
the Board and admitted that he was convicted of new criminal offenses. C.R. at 54.
By order dated July 12, 2018, the Board recommitted Barksdale as a
convicted parole violator (CPV) to serve 11 months, concurrent with his 6-month
recommitment as a TPV. C.R. at 88. The Board then exercised its discretion and
credited Barksdale for the time spent at liberty on parole from 2011 until the incident
in November 2017. Id. The Board calculated Barksdale’s new maximum date as
April 30, 2019. C.R. at 72.
3
Barksdale filed an administrative remedies form on August 2, 2018,
challenging the Board’s calculation of his new maximum date. C.R. at 90-93. He
asserted the correct maximum parole violation date was November 6, 2018, based
on the date of his detention solely on the Board’s warrant. The Board denied
Barksdale’s request for administrative relief on September 28, 2018, without
explaining its calculation of the date. See Barksdale I.
Barksdale petitioned this Court for review of the Board’s calculation,
asserting the maximum date should have been calculated using the date the Board
issued its detainer as his custody for return date. Without reviewing the merits, this
Court determined the Board failed to provide a sufficient explanation for its decision
under Section 507 of the Administrative Agency Law, 2 Pa. C.S. §507. See id.
Therefore, we vacated the Board’s order and remanded the matter directing the
Board to explain its calculation.
Pursuant to this Court’s remand directive, by decision mailed
September 10, 2019, the Board issued an amended response to Barksdale’s
administrative remedies form submitted in August 2018. C.R. at 96-97. In its
amended response, the Board corrected the deficiencies identified in Barksdale I. Id.
Specifically, the Board explained it paroled Barksdale from an SCI on
May 3, 2011, with a maximum date of October 27, 2018. At that time, Barksdale
had 2734 days remaining on his sentence. The Board’s decision to recommit him as
a CPV authorized the recalculation of his sentence to reflect a credit for the time he
spent at liberty on parole from May 3, 2011, to November 6, 2017, a total of 2379
days. Reducing the sentence by that amount (2734 - 2379), Barksdale had 355 days
4
remaining on his unexpired term, i.e., backtime. Barksdale also received credit for
the time he served from November 16, 2017, to December 7, 2017 (21 days).
Subtracting this additional 21 days left him with 334 days on his unexpired term.
Barksdale petitioned for review from the Board’s amended decision,
naming the Board and SCI-Mercer Records Department as respondents.
II. Discussion
On appeal,3 Barksdale challenges the recalculation of his maximum
parole violation date. He argues the correct maximum date is November 6, 2018,
when properly calculated from November 16, 2017, which was the date he was
placed in custody solely on the Board’s warrant as a TPV.
The Board counters that Barksdale became available to serve his
backime on the date of sentencing, which was May 31, 2018. It posits that the new
sentence had to be served consecutively to the original sentence, and he “became
available” to serve his backtime on the date of sentencing because “he had previously
been recommitted as a [TPV].” Board’s Br. at 7 (quoting Snyder v. Pa. Bd. of Prob.
& Parole, 701 A.2d 635, 637 (Pa. Cmwlth. 1997)).
There is no dispute Barksdale owed 2734 days of backtime on his
unexpired term at the time of his delinquency on November 6, 2017. The Board
credited Barksdale for the time he spent at liberty on parole, totaling 2379 days,
3
Our review of the Board’s decision is limited to determining whether constitutional rights
were violated, whether the decision is in accordance with the law, and whether necessary findings
were supported by substantial evidence. Plummer v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207(Pa. Cmwlth. 2019).
5
leaving 355 days (2734 - 2379) on his unexpired term. The allocation of these 355
days is in dispute. Because the number of days is mathematically the same, the only
disagreement between the parties relates to the proper date to start the calculation.
The Board credited Barksdale with the 21-day period between
November 16, 2017, and December 7, 2017, while he was in custody solely on the
Board’s detainer. Subtracting that 21 days from the 355 days of backtime, Barksdale
owed 334 days on his unexpired term. To derive the maximum parole violation date
of April 30, 2019, the Board added the 334 days to May 31, 2018, the date he was
sentenced on the new charges.
By contrast, Barksdale contends the 355 days should have been added
to November 16, 2017, such that his maximum parole violation date would be
November 6, 2018. He asserts November 16, 2017, is the proper custody for return
date because that is the date he became available to serve his unexpired term based
on his status as a CPV.4 This Court is tasked with determining the proper custody
for return date from which the parole violation maximum date may be calculated,
November 16, 2017 (date solely detained on Board’s warrant), or May 31, 2018,
(date of sentencing on new charges).
In his administrative remedies form, Barksdale cited this Court’s
decision in Smith v. Pennsylvania Board of Probation & Parole, 133 A.3d 820 (Pa.
4
We note Barksdale requests this Court to determine that his parole violation maximum
date is November 6, 2018, which is the recomputed maximum date stated in the Board’s initial
order to recommit. Certified Record (C.R.) at 28. However, that order to recommit was based on
Barksdale’s status as a TPV, not a CPV. Relevant here, following his sentencing on the new
conviction, the Board issued another order to recommit in July 2018, stating that his custody for
return date was May 31, 2018, the date of sentencing for the new convictions.
6
Cmwlth. 2016), rev’d, 171 A.3d 759 (Pa. 2017), as support for his argument that his
maximum parole violation date should be calculated as November 6, 2018. However,
he did not recognize the subsequent reversal of this Court’s decision by our highest
court. See 171 A.3d 759 (Pa. 2017) (Smith II). In Smith II, our Supreme Court held
that the defendant was not entitled to credit toward his original sentence for time
detained on both the Board’s detainer for parole violations and for his pre-trial
incarceration on new charges. That is consistent with the Court’s earlier holding that
“where an offender is incarcerated on both a Board detainer and new criminal charges,
all time spent in confinement must be credited to either the new sentence or the original
sentence.” Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299, 309 (Pa. 2003).
In this case, the period Barksdale was detained on both the Board’s
detainer and on the new charges was from December 7, 2017, to May 31, 2018.
That time was credited to Barksdale’s new sentence. That is appropriate based on
the sentencing order and current case law. See id.After careful review of the record, it is apparent that Barksdale received
credit for all his time in custody. He received credit for the 21 days he served prior
to bail being set as to his then-pending criminal charges corresponding to November
16, 2017, to December 7, 2017. Martin. He received credit for his pre-sentence
confinement (175 days) from December 7, 2017, to May 30, 2018, toward his new
sentence. See C.R. at 70-71; see also Smith II. Moreover, the sentencing order stated
the sentence on the new charges “shall run consecutive to all other sentences being
served.” C.R. at 70. The time for which Barksdale received credit on his new
sentence may not also be credited to his original sentence.
7
It appears that Barksdale believes he is entitled to credit on both of his
sentences for the same period of time. But there is no legal support for his assertion;
the case law Barksdale cites in support of his position has been reversed or overruled.
See, e.g., Banks v. Pa. Bd. of Prob. & Parole, 136 A.3d 1102 (Pa. Cmwlth. 2016),
vacated, 176 A.3d 228 (Pa. 2017) (Table) (overruled in Smith II). Relying on Banks,
Barksdale asserts he remained in the primary custody of the first jurisdiction, so he
is “therefore considered borrowed.”5 See Pet’r’s Br. at 11. However, this Court’s
decision in Banks was overruled by Smith. Barksdale is not entitled to have the same
period of time (December 7, 2017, to May 31, 2018) applied to both the backtime
owed on his original sentence and to the new sentence. He received credit for that
period on his new sentence. Smith II.
All of the time Barksdale served is accounted for in the maximum
parole violation date calculation. The Board credited him for the 21-day period
(November 16, 2017, to December 7, 2017) toward his backtime such that 334 days
of backtime remained. Barksdale became available to serve his unexpired term on
the date of sentencing, and we discern no error in the Board using that date as his
custody for return date. Adding the 334 days of backtime to the May 31, 2018,
custody for return date yields April 30, 2019, as the maximum parole violation date.
Thus, the Board did not err in calculating the maximum parole violation date here.
5
In his counseled brief, Barksdale argues that because he was consistently in custody of
the Department of Corrections until his release on parole in September 2019, that he was
“borrowed” from the primary jurisdiction (State) when he was serving pre-sentence confinement
on the court of common pleas charges that was ultimately counted toward his new sentence. The
issue of borrowed status is relevant when determining which jurisdiction has primary custody for
sentence calculation. See, e.g., Fowler v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 67 C.D.
2013, filed Oct. 16, 2013), 2013 WL 5762355 (unreported) (involving detainee transfer from
federal institution on federal charges and return to state institution). However, Barksdale does not
indicate how the concept of primary custody and borrowed status affects the outcome and its
relevance is not evident.
8
III. Conclusion
For the foregoing reasons, we affirm the Board’s order.
______________________________
J. ANDREW CROMPTON, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey Barksdale, :
Petitioner :
:
v. : No. 1426 C.D. 2019
:
Pennsylvania Board of Probation and :
Parole and SCI Mercer Records :
Department, :
Respondents :
ORDER
AND NOW, this 9th day of September 2020, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge